from the sure-it's-cool-to-listen-in-on-convos,-but-it-is-helping-win-a-drug-war? dept

Federal and state courts reported a combined 23 percent decrease in authorized wiretaps in 2018, compared with 2017, according to the Judiciary’s 2018 Wiretap report. Convictions in cases involving electronic surveillance also fell sharply.

I'm not sure if this is supposed to be bad news or good news. Should we feel anything about it? Maybe dismay, because law enforcement just isn't working as well as it used to? Some sort of disappointment that wiretaps aren't turning into convictions as often as they used to in the past? A general malaise about the sheer number of inscrutable stats that government thrusts at us in an attempt to believe it actually cares about transparency?

Maybe what we should feel is some sort of gratitude the system isn't being abused quite as frequently. This gratitude shouldn't be directed towards the court system, which has been a willing enabler of law enforcement abuse. It shouldn't be directed towards law enforcement, which has repeatedly shown an ability to abuse any system it works with.

For years, the DEA ran wiretap warrants through state courts in southern California. A majority of these warrants landed in front of a single judge. The DEA had California courts acting as enablers, allowing agents to bypass restrictions the DOJ places on seeking and deploying wiretaps. Having found an easy source for warrant approval, the DEA went back to the well time and time again, even as other federal law enforcement agencies expressed their concerns about the legality of this tactic.

A single courthouse in California was issuing 250-300 wiretap warrants a year until a new DA took over and put an end to this abuse. Other prolific issuers of wiretap warrants likely started paying a bit more attention when the DEA approached them, given what had been exposed in California. As Heath points out, the number of wiretaps approved in California has dropped 90% since its 2014 peak -- the year before Brad Heath and Brett Kelman's reporting ripped the lid off the DEA's wiretap warrant mill.

Despite this, California still leads the nation in wiretap warrant approvals. This is due to its proximity to the Mexican border which means most drug trafficking investigations originate there.

Applications in six states (California, New York, Nevada, Pennsylvania, Colorado and New Jersey) accounted for 82 percent of all state wiretap applications. California alone accounted for 24 percent of all applications approved by state judges.

And wiretaps are still primarily for drug warriors:

46 percent of all wiretaps cited narcotics as the most serious offense under investigation, compared with 53 percent in 2017. Conspiracy investigations accounted for 13 percent, and homicide investigations accounted for 4 percent.

In other words, it's more of the same. What's supposed to be a last resort for law enforcement -- the interception of communications -- is still used routinely in the most routine investigations.

This information is useful but it doesn't do anything to improve government accountability. That's left up to journalists and FOIA warriors since the police are never going to police themselves.

from the Title:-III,-Privacy:-0 dept

US authorities intercepted and recorded millions of phone calls last year under a single wiretap order, authorized as part of a narcotics investigation.

The wiretap order authorized an unknown government agency to carry out real-time intercepts of 3.29 million cell phone conversations over a two-month period at some point during 2016, after the order was applied for in late 2015.

This detail, contained in the US Courts' latest wiretap report, shows how much the government can get with a single wiretap order. Using assertions of "training and expertise," US drug warriors intercepted millions of phone calls, ringing up a $335,000 third-party phone bill in the process.

But hey, the Drug War can't be won without casting a wide dragnet. Drug conspiracies are vast and far-reaching, often leading law enforcement to bigger fish further down the line. Or so the affidavit assertions say…

But the authorities noted that the surveillance effort led to no incriminating intercepts, and none of the handful of those arrested have been brought to trial or convicted.

To recap:

1 wiretap warrant

$335,000 spent

3.3 million communications intercepted

0 convictions

The statutes governing wiretap warrants designate they should only be used when all other, less-intrusive investigative methods have failed. The fact that these 3.3 million communications failed to add up to a single conviction suggests other investigative methods weren't fully explored before a judge autographed this warrant request. To be fair to the judge, the requesting agency probably wasn't forthcoming about its previous investigative ventures.

The FISC report showed that that court denied in full 8 of 1485 individual US based applications, at a rate of .5%, along with partially denying or modifying a significant number of others.

The Article III report showed that out of 3170 requests, state and federal courts denied just 2 requests.

[...]

That’s a denial rate of .06%.

If there's good news to be gleaned from this report, it's that the number of wiretap orders obtained has dropped dramatically over the last year.

A total of 3,168 wiretaps were reported as authorized in 2016, compared with 4,148 the previous year. Of those, 1,551 were authorized by federal judges, compared with 1,403 in 2015. A total of 1,617 wiretaps were authorized by state judges, compared with 2,745 in 2015.

There's been a slight uptick in federal court approvals, but a dramatic downturn in state court approvals. Most of this drop can likely be linked to 0 being under the direction of a new District Attorney, who has stepped up to curb the wiretap abuses by his predecessor. For several years, the DEA -- which should be running its wiretap requests through federal courts -- was running its wiretap affidavits past an absentee DA and a very compliant (and efficient) state court judge.

Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge's orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.

Officials approved another 607 wiretaps in 2015, according to the figures released by the district attorney’s office. Most were approved in the first half of the year, before [new DA Mike] Hestrin said he installed a “stricter” standard that required every new wiretap application to have a “strong investigatory nexus” to Riverside County.

Taps have dwindled since then. So far this year [2016], Hestrin has approved only 14. In the first two months of last year, his office approved 126.

As Heath's report notes, this single DA's office and single state court judge were once responsible for 20% of the nation's state court-approved wiretaps. This no longer is the case, and the DEA's recent legal troubles associated with these questionable wiretaps has probably pushed it towards seeking more federal judges' signatures last year -- something it should have been doing all along.

from the give-'em-enough-leash dept

Last time we checked in with (former) Brooklyn prosecutor Tara Lenich, she was facing state charges for abusing wiretap warrants to listen in on conversations between a police detective and one of her colleagues. This stemmed from what was termed a "personal entanglement" between her and the detective.

The wiretap warrants couldn't be obtained without a judge's signature. Since there was no probable cause for the warrant, no judge would sign them. Lenich had a solution. She just forged the judge's signature on the warrant. And then she kept forging judges' signatures, stretching out her illicit surveillance for more than a year, with a faked signature on every 30-day renewal.

Lenich is now facing federal charges. An indictment handed down by DOJ pretty much repeats the allegation of the state charges, detailing Lenich's long-running, extremely-personal wiretap operation.

As alleged in the indictment, for nearly 16 months between approximately June 2015 and November 2016, Lenich created fraudulent judicial orders as part of her illegal wiretapping scheme. Specifically, she forged the signatures of multiple New York State judges onto the illicitly created judicial orders -- orders that purportedly authorized the KCDA to intercept communications occurring over two cellular telephones. Lenich then misappropriated KCDA equipment to intercept, monitor, and record the communications to and from the two cellular telephones. In furtherance of her scheme, Lenich also created fraudulent search warrants, which she then used to unlawfully obtain text messages relating to the two cellular telephones.

Prosecutors have plenty of power and plenty of tools at their disposal. At some point, they'll be abused. Sometimes the damage is minimal and goes unnoticed. Other times, the abuse is discovered inadvertently. Inevitably, when the discovery is made, it's always something that's been happening for months or years, rather than a recent one-off where someone just made a very poor decision.

A court-appointed investigator has found that the United States Attorney’s Office for Kansas is in possession of hundreds of phone and video recordings of communications between attorneys and their clients, inmates at a privately run prison facility in Leavenworth.

At least 700 attorneys are believed to have been recorded without their knowledge, the investigator’s report submitted to a federal court said. Last week Special Master David Cohen asked to expand his probe to determine whether prosecutors regularly listened to and compiled attorney-client conversations. Already, 227 phone call recordings and at least 30 videos of attorney-client meetings have been discovered in the U.S. Attorney’s Office in Kansas City.

These recordings, captured by Securus equipment and obtained by prosecutors from private prison company CoreCivic, contained privileged conversations between inmates and their legal representatives. The US Attorney's dirty little eavesdropping secret was exposed when it hauled in a defense lawyer to accuse her of wrongdoing.

Jackie Rokusek told The Daily Beast she was called to the U.S. Attorney’s office in Kansas City last August, where she said she was told by prosecutors that they had video evidence of her providing her client with confidential information about a drug ring case. Rokusek was given a computer and she watched the video, then she says she accidentally clicked on another file. A window opened, and a video showing another attorney meeting with their client at Leavenworth played. Stunned, Rokusek immediately went to the Federal Public Defender’s office in Kansas City and told them what she’d found.

Prosecutors were hoping to push Rokusek towards recusing herself from a case with this supposedly-damning recording. Instead, it showed federal prosecutors had been listening in on discussions between defense attorneys and their clients and possibly using these to stack the prosecution deck.

It's common knowledge prison phone calls and personal visits are recorded. Signs are posted prominently in prisons informing inmates and visitors of this fact. But just because recordings exist doesn't mean prosecutors can avail themselves of privileged conversations between lawyers and clients. Everything else is fair game.

But the recordings do exist. Securus and CoreCivic aren't going to shut off cameras and mics simply because there's a lawyer involved. And if the recordings exist, sooner or later someone's going to abuse this access. The only side that has this access is the prosecution. The side with the most power can eavesdrop with the willing assistance of those in the incarceration business. If they're careful, this abuse could go on indefinitely. If not, they'll enjoy a good run of slanted prosecutions before the hammer falls.

from the time-for-some-depressing-Venn-diagrams dept

Albert Gidari of Just Security/Center for Internet and Society has been looking into the US Courts' wiretap reports for 2014 and 2015. The problem with these reports is that nothing adds up. As he wrote for Just Security last year, there's a huge discrepancy between the numbers reported by the US Courts Administrative Office and those reported by the service providers complying with the orders.

These numbers should be much closer than they are. If a wiretap is issued by a court, then the recipient service provider should report being served with one wiretap order. But that's not what has happened. The US Courts AO reported 3,554 federal and state wiretap orders in 2014. Service providers, however, reported receiving 10,712 wiretap orders for that same year.

As Gidari pointed out in 2015 (examining the 2014 wiretap report), there's not much that explains this discrepancy.

The Wiretap Report says “1,532 extensions were requested and authorized in 2014, a decrease of 28 percent.” So even if half of the carrier reported orders were extended once and then treated as separate orders in the carriers’ transparency reports (the Wiretap Report would treat an extended order a single order), the numbers are still off by more than two­fold.

The same goes for orders that expired after the end of the reporting period. As Gidari notes, anything not counted by the courts the previous year would show up on next year's report and be negated by the lack of a new order on service providers' reports.

The AO now reports that 4,148 wiretaps were authorized in 2015, a 17% increase over 2014. Twentysix of those authorized wiretaps apparently were never installed, and therefore probably do not appear in provider transparency reports. The four major carriers (AT&T, Sprint, Verizon and T-Mobile) reported a total of 11,633 wiretaps in 2015. Thus, provider numbers reflected an increase in surveillance as well, but only by about 8%. So the three-fold delta from 2014 remains while the actual number of wiretaps reported by providers only increased half as much as the percentage increase reported by the AO. That is hard to explain.

As transparency reports from carriers and service providers become even more detailed, the gap in reporting becomes even harder to explain. It could be that carriers count each wiretap installed as another instance, even if it's a dozen accounts targeted with a single order. It could be that, but it's highly unlikely. Facebook -- one of the more recent additions to wiretap reporting -- states it this way in its transparency report.

Facebook reported that it received 296 wiretap orders that affected 399 user accounts in 2015.

While companies are moving towards greater transparency, the US court system seems to be stuck in the same place. There's really only one way to explain this gap containing thousands of "missing" wiretap orders: underreporting by the those handing in numbers to the Administrative Office. Considering the huge potential for misuse and abuse, this apparent underreporting isn't acceptable. The Administrative Office is investigating, but so far has yet to report any results from its digging.

Once again, it seems a reporting process ordered by Congress but left to another agency to enforce (with zero consequences for noncompliance) is resulting in discrepancies between the "official" numbers and those reported by the private sector. It looks and feels just like the FBI's collection of officer-involved shootings: incomplete, inaccurate, and wholly dependent on government entities self-reporting data they'd rather not make public.

from the rules-are-for-other-people dept

The reason there are so many controls and layers of oversight over wiretap warrants is because the potential for abuse is huge. The FBI abused its wiretap authority for years, which resulted in new restrictions for federal wiretap warrants. The DEA has found a way to route around these, but at the expense of its investigations.

A high-ranking prosecutor in the Brooklyn district attorney’s office was arrested this week on charges that she used an illegal wiretap to spy on a police detective and one of her colleagues in what a law-enforcement official described as a love triangle gone wrong.

The prosecutor, Tara Lenich, was taken into custody on Monday and fired after investigators in the district attorney’s office learned over Thanksgiving weekend that she had conducted the illicit surveillance because of “a personal entanglement between her and the detective,” according to the law enforcement official, who spoke on the condition of anonymity because of the delicate nature of the case.

Give the wrong person enough power and they're sure to abuse it. Lenich forged judges' signatures repeatedly to extend her very personal wiretap warrant every 30 days. This allowed her to illegally eavesdrop on conversations for nearly a year. She ducked questions about her wiretap by claiming she was working on a sensititive investigation in conjunction with the NYPD Internal Affairs department.

As defense lawyer Wilson A. LaFaurie points out, a system heavily-reliant on signatures raises some questions about the trustworthiness of that system.

“The public should have a tangible fear of this,” Mr. LaFaurie said. If prosecutors were willing to forge a judge’s signature, he said, they could also potentially manipulate evidence for other cases by forging the signatures of witnesses, crime victims or police detectives.

At least in the cases of the judges whose signatures were forged, those can be verified by asking the judges themselves. In some of the hypothetical cases LaFaurie refers to, there may be no one to ask.

The most disheartening part of this mini-debacle is the responses from the district attorney's office. The spokesman for the office says an internal review of protocols and guidelines is underway, but says nothing about digging through Lenich's cases for other possible misconduct. The best protocols and procedures may already be in place, but that's not going to stop someone determined to abuse their power. And there's no way to confirm they haven't abused this power in the past if you're not willing to examine their body of work.

Lenich's lawyer's statement is even worse, although it can be partially forgiven as he's not acting as an agent of the state.

Gary Farrell, Ms. Lenich’s lawyer, said he did not believe there was “any merit to the claims that these charges somehow impugn wiretaps for other cases.”

Actually, it does impugn wiretaps for other cases, especially in cases overseen by his client. Her lawyer says there's nothing to see here, which is fine in terms of advocating for a client. But the DA's office seems to hold the same opinion, which is much more worrisome. Whenever abuse is uncovered, the usual response is to treat it like a unicorn, rather than possibly a leading indicator of malfeasance yet to be uncovered.

Then there's this:

Mr. Farrell said Ms. Lenich was well known and well liked in Brooklyn legal circles and had a reputation for fairness and professionalism.

Well, not so much now. All it takes is one severe, felonious abuse of the system to undo all of that goodwill and cause collateral damage to the reputation of the office she served.

from the Judge-Malloy's-Wiretap-Warrant-Laundry-Service dept

Over the past several years, the DEA has run hundreds of wiretap warrants through a single county judge's court after getting them approved by whoever happened to be in the local district attorney's office when agents need one signed. The latter part of this process runs contrary to statutes enacted specificallyto prevent abuse of wiretap warrants by the federal agencies.

The approval process, which had been streamlined to eliminate any possible roadblocks to the DEA's deployment of wiretaps all over the country, was considered by the DOJ to be far enough outside legal boundaries as to make the warrants questionable, if not legally "toxic."

The district attorney who was supposed to personally approve these wiretap warrants never did. Former Riverside County district attorney Paul Zellerbach delegated this task to anyone but himself. Because of this, some of the warrants have been challenged in court, leading to the DOJ stepping in to salvage wiretaps its lawyers had previously instructed DEA agents to keep out of federal courts.

Superior Court Judge John Molloy ruled that the district attorney was allowed to delegate the responsibility of approving wiretap applications to his second-in-command.

Except that's not really what happened. Zellerbach, who managed to obtain a warrant of his own by failing to show up for court, never designated any particular person to approve the warrants. As Brett Kelman and Brad Heath reported earlier, Zellerbach himself stated that he delegated this task to "lower level lawyers," rather than a specific person -- contrary to statutes directly stemming from the federal government's previous abuse of wiretap warrants to surveil civil rights leaders during the 1960s.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally signed off on that request.

Zellerbach claimed he had no time to personally approve these wiretap requests. And he probably didn't, what with the DEA funneling several hundred of these through his office and into the hands of county judge Helios Hernandez (who singlehandedly approvedfive times as many wiretap warrants as any other judge in the nation).

Judge Molloy, however, likely views this abuse of the system as good police work.

Molloy, a former prosecutor who used to work with wiretap applications, ruled that Zellerbach’s practice of letting his number-two prosecutor sign off on them did not violate state or federal wiretap laws.

Molloy also said that because Zellerbach was away at an education conference in another Southern California town when the specific wiretap defense lawyers were challenging was approved, he would have been allowed to delegate it anyway.

Zellerbach's second-in-command testified in court that he usually handled wiretap requests, paying no mind to the federal limitation that Zellerbach be actually absent before he had permission to do so.

Under Zellerbach, that person was Van Wagenen. However, on Friday, Van Wagenen testified that he didn’t actually check if Zellerbach was available before he signed hundreds of applications.

“The protocol was that I was to sign the application instead of Mr. Zellerbach,” Van Wagenen said.

"This is fine" ruled the judge, and at least one warrant -- if not dozens of others obtained in the same jurisdiction (which would be a significant percentage of the DEA's wiretap warrants) -- has been given a post facto veneer of lawfulness. This takes some weight off the DOJ's legal team, which had previously advised the DEA to steer clear of federal prosecutions stemming from questionable warrants. Now, it can just let the highest level local judge's blessing do its work for it.

from the no-EOP-in-mistakenly-intercepted-calls? dept

The Fourth Amendment contains an exception for "plain view:" evidence of criminal activity seen by law enforcement, whether it's through a cracked-open doorway, on a vehicle's seat, etc., can be seized and used without seeking a warrant. The government would also like to avail itself of a "plain hearing" exception, which it can use to salvage evidence of criminal activity in overheard conversations intercepted with a wiretap.

The FBI obtained a wiretap warrant for a number it believed belonged to the target of its drug investigation, Ignacio Escamilla. After listening to several conversations about drug dealing, the agents came to the conclusion that Escamilla wasn't actually using the phone number targeted by the wiretap. However, they felt the conversations they were overhearing were related to the Escamilla drug conspiracy they were investigating. So, they kept listening.

These conversations -- which didn't include the target of the wiretap -- led to the arrest of Michael Carey, who pled guilty to drug charges while reserving the option to move to suppress the evidence. The lower court concluded that the government could use wiretap warrants to gather evidence against other individuals, even if they weren't actually targeted by the wiretap. This was the "plain hearing" holding.

The Appeals Court agrees [PDF] to a certain extent. While the government is welcome to make use of some unrelated evidence it comes across while eavesdropping, it cannot simply continue to intercept conversations once it's established the target of the warrant is not actually using that phone number.

In short, we see no reason to depart from principles requiring cessation of a wiretap once the government knows or reasonably should know that the person speaking on the tapped line is not involved in the target conspiracy. See Ramirez, 112 F.3d at 851–52. The government may use evidence obtained from a valid wiretap “[p]rior to the officers’ discovery of [a] factual mistake” that causes or should cause them to realize that they are listening to phone calls “erroneously included within the terms of the” wiretap order. Cf. Garrison, 480 U.S. at 87–88. And once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.

However, this conclusion doesn't automatically result in suppression of the recorded evidence. The Appeals Court notes that the defendant and the government are diametrically opposed on the admissibility of the evidence.

It is unclear how much of the government’s wiretap evidence may fall outside of the “plain hearing” doctrine. Because the parties staked out polarized positions before the district court—the government arguing for all wiretap evidence, Carey for none of it—and because the district court adopted the government’s position in denying the motion to suppress, the record lacks the findings necessary to determine what evidence was admissible against Carey. We vacate the district court’s order denying the motion to suppress and remand on an open record to determine what evidence is admissible against Carey under the legal framework set forth above.

from the DEA-DOA dept

A judge issued an arrest warrant Tuesday for former Riverside County District Attorney Paul Zellerbach after he failed to appear at a court hearing to answer questions about an eavesdropping operation so vast it once accounted for nearly a fifth of all U.S. wiretaps.

[...]

"He should have been there," said Jan Ronis, the attorney who subpoenaed Zellerbach. "But he just blew us off. We could have had court today."

It's not uncommon for Zellerbach to go missing when people need him. When Zellerbach ran the DA's office, he was rarely there. The DEA found his office to be just as accommodating, with or without him, though. Although the DEA was supposed to run its wiretap warrant requests through federal judges and have them signed by the district attorney himself, it often found it easier to obtain a signature from whoever happened to be at the office and run them by Riverside County judge Helios Hernandez, who approved five times as many wiretap applications as any other judge in the US.

The wiretap applications' reach frequently exceeded their jurisdictional grasp, traveling far outside of Riverside County, California, to be deployed against suspects as far away as North Carolina. But that was only one issue with the warrants applications approved by Zellerbach's office.

The DOJ's lawyers didn't like the DEA's skirting of federal rules for wiretap applications.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court," a former Justice Department lawyer said.

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

Riverside County’s former district attorney, Paul Zellerbach, has acknowledged that he allowed lower-level lawyers to do that job, saying he could not recall ever having reviewed a wiretap application himself. Four of the wiretaps in the Kentucky case were approved by one of Zellerbach’s assistants, and one was approved by an assistant to his successor.

Now, the DEA's toxic and possibly illegal wiretap warrants are being challenged, now that defense lawyers know exactly how much -- and how often -- state and federal requirements were being skirted by the drug warriors. That's what has led to Zellerbach's arrest warrant.

The first challenge, filed in Kentucky, led a federal judge to say that Riverside had issued so many wiretaps “that constitutional requirements cannot have been met.” The second challenge, filed locally, led to the warrant being issued for Zellerbach.

Zellerbach was subpoenaed to appear in the case of Christian Agraz, 33, an accused drug trafficker who was allegedly caught on a wiretap selling bricks of heroin in 2014.

The former DA did not appear at the hearing in the Agraz case on Tuesday morning, so Judge Michele Levine issued a bench warrant and assigned a bail of $1,500.

The constitutional requirements say Zellerbach was supposed to sign each wiretap application personally. Paul Zellerbach can't recall approving a single one of the hundreds that flowed through his office over the years.

The DEA's Riverside County-centric drug war looks like it's going to result in several cases being tossed out. Fortunately, the DEA still can keep everything it's claimed via civil asset forfeiture, which makes good busts out of bad ones and makes obtaining convictions entirely optional.

from the Re:-Something:-Will-this-do? dept

The DEA will no longer be able to waltz into Riverside County (CA) judge Helios Hernandez's chambers and walk out with signed wiretap warrants. I mean, they'll still be able to get Judge Hernandez to sign warrants. After all, no one does it better:

Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States.

He's so efficient even the DEA can't quite wrap its mind around it.

Hernandez approved 20 times as many wiretaps as his counterparts in San Bernardino County. DEA officials said they could not explain that difference.

The DEA never let Rule 41 jurisdiction limitations bother them. Agents used wiretap warrants to track suspects all over the nation. The DEA also didn't let the DOJ's hesitancy to condone its actions/warrants get in the way of its drug warring. DOJ lawyers heavily hinted that if the DEA wanted to use questionable wiretap warrants, it had better not be dragging its raggedy affidavits into federal court.

But drag those affidavits into federal court it did, forcing the DOJ to defend the very warrants it told the DEA to stop dropping off at its place. The DOJ's lawyers said the toxic, possibly illegal warrants were actually 100% legal, perfectly compliant with federal and state law -- even though they were missing the signature of the local District Attorney, as required by federal law.

The Drug Enforcement Administration has ordered its agents to seek input from federal prosecutors before tapping Americans’ phone calls or text messages, months after it came under fire for a vast and legally questionable eavesdropping program in the Los Angeles suburbs.

The rules are a significant change for the drug agency, which had dramatically increased its use of wiretaps over the past decade by seeking authorization from state judges and prosecutors who were willing to approve the surveillance more quickly and with less scrutiny.

In theory, this means DEA agents will have to have federal prosecutors sign off on affidavits/warrants before running them past whoever happens to be manning the desk at the local DA's office. This won't necessarily make them more compliant with federal law, as it has historically been truly rare to find the local DA actually in his office, but it does mean there will finally be some oversight in place. To date, the only "oversight" the DEA has had to endure is the occasional DOJ lawyer telling agents "no fucking way" (ACTUAL QUOTE) whenever they approached federal prosecutors with a drug bust.

Wiretaps are considered so intrusive that federal law requires approval from a senior Justice Department official before agents can even ask a federal court for permission to conduct one. The law imposes no such restriction on state court wiretaps, even when sought by federal agents.

Unless the DEA (or Congress) closes this loophole, nothing will change. There may be a temporary improvement, but it will be just that: temporary. The DEA has long been used to jumping zero hurdles on its way to intercepting communications. There's no reason to believe it won't revert to form unless steps are taken to prevent it. In fact, the DEA's actions will probably have less effect on its wiretap abuse than the installation of a new district attorney. As of the end of February, DA Mike Hestrin had only approved 14 wiretap warrants -- a huge decrease from the 126 approved over the same two-month period last year.

from the oh-wait,-there's-actual-MONEY-on-the-line dept

Late last year, USA Today's Brad Heath and Brett Kelman uncovered a massive DEA wiretap program -- one that was being run almost exclusively through a single California state court judge and being signed off on by a single DA's office. The wiretaps were likely illegal, seeing as the warrants weren't being run by federal judges. They also weren't being signed by the top prosecutor in the area, as is required federal law.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally signed off on that request, a requirement Congress added after the FBI wiretapped civil rights leaders in the 1960s. The only exception is when the district attorney is “absent” and has authorized someone else to act in his place, a federal appeals court ruled in 2013.

The wiretaps -- and the evidence obtained -- were considered so toxic, DOJ lawyers were telling the DEA not to drag them into any of its courtroom battles.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court," a former Justice Department lawyer said.

[...]

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

The Justice Department urged a judge not to throw out a series of wiretaps agents used to arrest an accused marijuana trafficker, saying the surveillance was “authorized in accordance with state and federal law.” That defense came in a filing Monday in federal court in Louisville.

Someone up top must have been concerned about losing a big drug bust. This case has gone federal and it involves a large amount of cash -- something that is certainly motivating the DEA to keep its evidence intact.

In May 2014, DEA Riverside informed DEA Louisville, who in turn informed Detective Murphy, that Shewmaker had been arrested near Perris, California, and that a consent search of his vehicle had resulted in the seizure of $418,930 in U.S. currency from hidden compartments inside the front and rear passenger side door panels.

The DOJ is arguing that the lack of a signature by the top prosecutor in the area shouldn't result in the suppression of evidence. It claims the defense is reading far too much into the California statute that determines who can and can't sign off on federal wiretap requests.

Thus, in the instant case, suppression is implicated only if this Court finds that the California legislature intended to require each district attorney, no matter how large or small their particular jurisdiction might be, to personally review and authorize every single wiretap application unless they were physically absent from the office, in which cases a properly designated subordinate might perform the review and authorization, and that the legislature regarded this requirement as a central purpose of the legislative intent to ensure that wiretaps were only authorized in appropriate cases. Surely, had this been the legislative intent, the law would be more specific about what “absence” means. It seems obvious that the legislature was primarily concerned about the scope of the designation, that is, to ensure that the authorization to review a wiretap application was given to a high-ranking assistant who was essentially authorized to run the office in the district attorney’s absence.

State law says the "top prosecutor" must sign them, unless he's absent. The DEA funneled its wiretap requests through the office of The Prosecutor Who Wasn't There.

Riverside County’s former district attorney, Paul Zellerbach, has acknowledged that he allowed lower-level lawyers to do that job, saying he could not recall ever having reviewed a wiretap application himself. Four of the wiretaps in the Kentucky case were approved by one of Zellerbach’s assistants, and one was approved by an assistant to his successor.

So much for the statute preventing abuse, if that's the way the DOJ chooses to read it. Rather than going to a top prosecutor -- someone who was supposed to ensure the proper probable cause was present and that the requesting agency had exhausted all other options -- the paperwork landed on the desk of whoever was available and could wield a pen with relative competence.

The assistant US attorney defending the previously-indefensible wiretaps says there's no reason technicalities like sidestepping federal law and state statutes should result in evidence suppression.

Fentress said that even if the wiretap applications were deficient, the problems were minor enough that the judge should not block the government from using them as evidence.

An argument for giving the government "good faith" credit, even though the deficient warrants were only a few months ago considered toxic enough DOJ lawyers were telling the DEA to stay the hell away from federal courts. Perhaps the DOJ wouldn't be in this awkward position if it had simply told the DEA to do things by the book, rather than take the path of least no resistance.